Jury Nullification

When They Nullify the Law, Jurors Are Just Doing Their Jobs

Jury nullification angers judges and prosecutors, but it's all just part of the jurors' role in protecting us from the government.


Why juries do what they do is often a mystery, especially when they protectively interpose themselves between the government and a defendant. Outsiders can't know what really goes on during jury deliberations, and jurors themselves have no way of knowing what truly motivates their colleagues to bring a not guilty verdict. That's why jury nullification—acquittals of defendants who jurors believe did violate the law but don't deserve punishment, either because of specifics of the case or because jurors oppose the law in question—isn't always obvious. It's extraordinarily rare for jurors to tip their hands by setting people loose and then telling them they should keep up the good work, which is what happened in a recent case from New York.

But, as with much of what jurors do, nullification is important and potentially powerful.

Prosecutors and their groupies don't really care why they were thwarted—just that they didn't get their way. When refused convictions in high-profile criminal cases, they tend to act as if the government has been denied something to which it's entitled by divine word and the laws of nature. Amidst whining by prosecutors about spending a week with "12 idiots," and huffing by editorial boards over an "absurd verdict," it's difficult to know whether a not guilty verdict represents an act of juror rebellion or a simple statement that the government didn't live up to its obligation to prove its arguments. Although, either way, jurors likely consider themselves to be doing what's right.

That was certainly the case last year when all the usual people assumed that jury nullification was at the root of the acquittal of seven defendants who had occupied the Malheur Wildlife Refuge in protest of federal dominance of land throughout the West.

"The jury plainly failed to enact their Constitutional duty to apply the law rather than their opinions, and speaking as a professor of politics and government as well as a citizen of the United States, that's scary," wrote Lane Crothers of the University of Illinois in the pages of the New York Daily News. He went on to warn, essentially, that the peasants are revolting because they "don't like the federal government's presence in their lives." That's very bad, according to him.

Not so fast, one of the actual jurors protested in a letter to The Oregonian. "It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove 'conspiracy' in the count itself—and not any form of affirmation of the defense's various beliefs, actions or aspirations."

So, no rebellion at all—except that the one juror couldn't have known what the 11 other people in the room were thinking. Maybe they were being coy in their deliberations.

And actual jury revolts are a thing, though we can't know their frequency. On March 2, jurors in upstate New York acquitted four defendants of obstructing governmental administration, disorderly conduct, and trespass—charges related to a 2015 protest at the Hancock Field National Guard Base. The four opposed the piloting of Reaper drones from the base, particularly for bomb and missile missions in the Middle East that have frequently resulted in civilian deaths.

"Following the rendering of the verdict," the Upstate Coalition to Ground the Drones and End the Wars announced, "a juror approached [acquitted defendant] Brian Hynes and said 'I really support what you are doing. Keep doing it.'"

"Yesterday I spoke with one of the defendants found Not Guilty, and he confirmed that this was, indeed, a case of conscientious acquittal," reported Kirsten Tynan, executive director of the Fully Informed Jury Association.

Given the fury that judges and other officials display toward independent jurors, including occasional contempt of court and jury tampering charges, that's about as clear an indication as you're likely to get that a verdict represents a raised middle finger directed at the powers-that-be. Jurors who go about their business without revealing their motivations are immune to punishment, so keeping your mouth shut is just smart, even if it leaves the rest of us in the dark.

Which is why it's more common to see cases like the rapid acquittal of an Ohio machinist who was arrested for making what Bureau of Alcohol, Tobacco, Firearms, and Explosives agents claimed were firearms noise suppressors (so-called "silencers") without a license. Already on probation for manufacturing the devices, he was busted when federal agents said he was back in business and selling his inventory on eBay. He claimed his products were actually unregulated muzzle brakes and that the government's "expert" had no idea what he was talking about.

Whether the jury believed the machinist, or whether they thought it was ridiculous to threaten a man with producing items that can easily be made on a home workbench and that lawmakers at the state and federal level are considering deregulating, is something we'll probably never know. It's equally possible that jurors thought the prosecution presented a weak and unconvincing case as it is that they considered the law ridiculous and refused to enforce it. Either way, they likely concluded that they were carrying out their responsibility to do justice and protect defendants from government overreach.

Because, ultimately, jury nullification is just an extension of the jury's role as a check on the state—whether prosecutors are applying law badly, or just applying bad law. When jurors take their responsibilities seriously, they can push prosecutors to present more-convincing arguments, and they can prompt legislators to rethink whole areas of policy.

"25 percent of the country's voters have jumped over lawmakers and the government," New Hampshire Senate Minority Leader Jeff Woodburn (D-Whitefield) recently told the New Hampshire Business Review when asked about his support for marijuana legalization. "As we see with increased examples of jury nullification, there is no legitimacy anymore for these laws."

If juries can get officials to insert themselves into our lives less often, and to make stronger efforts to justify themselves when they do, what's to complain about?

Hey jurors, to quote one of your colleagues: I really support what you are doing. Keep doing it.